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ernment.26 While action by heads of departments has binding intradepartmental effect, it does not bind the courts.27

17. Interdepartmental Decisions

In the administration of the statutes in regard to the pay of officers of the Army, the decisions of the War Department should be regarded by the Treasury Department as establishing matters of fact concerning the military relations which existed between the government and the officers, but on the facts thus determined by the War Department all questions of law involving financial relations must be determined by the accounting officers of the Treasury.28

18. Head of Department may Reverse an Established Practice

The head of an executive department has the right to reverse a departmental practice based on the decision of a predecessor, even if a long-continued one, and such a former decision can be said to have no elements of estoppel or res judicata, save in respect to subject-matter finally settled and closed under it.29

19. Power to Prescribe Regulations

The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use and preservation of its records, papers and property. 30 Such regulations cannot legally embrace the conduct of persons not connected with the department for which they purport to be made.31

20. Purpose of Regulations

The purpose of regulations is to carry into effect the law in respect to which. they may be promulgated. So they cannot take away or abridge rights, duties and obligations defined by statute.3


21. Regulations Become Part of the Law

A regulation of a department promulgated in conformity to an act of Congress becomes a part of the law and of as binding force as if incorporated in the body of the act itself.33

The phrase "regulations of a department," in acts of Congress, should be understood as meaning general rules regarding the subject on which a department acts, made by the head of a department under some act of Congress conferring power to make such regulations, and thereby giving them the force of law. It does not include a mere order of the President or of a Secretary.34

26 Bollman's Case, 10 Op. Attys. Gen. 526.

27 Alire v. U. S, 1 Ct. Cl. 233; Lisotta v. U. S., 3 F.(2d) 108.

28 Parkhurst v. U. S., 29 Ct. Cl. 399.

29 Payne v. Houghton, 22 App. D. C. 234; Smith v. Payne, 22 App. D. C. 463.

30 R. S. § 161 (Comp. St. § 235).

31 17 Op. Attys. Gen. 524.

32 Campbell v. JJ. S., 107 U. S. 407, 2 S. Ct. 759, 27 L. Ed. 592; Cf. Ex parte Curtis, 106 U. S. 371, 1 S. Ct. 381, 27 L. Ed. 232.

33 U. S. v. Barrows, 1 Abb. 351 Fed. Cas. No 14,529; Morrill v. Jones, 106 U. S. 466,

1 S. Ct. 423, 27 L. Ed. 267.

34 Harvey v. U. S., 3 Ct. Cl. 38.

The regulations of a department in settling its accounts are intended for general rules in the transaction of its business, but are subject to a revision of a court and jury when they work manifest injustice to individuals.35

Regulations of a department in force for a number of years, which have received the tacit approval of Congress, will not be disregarded by the courts on the ground that they are not authorized by law.36

22. Regulations may Consist of Usages

Regulations need not be promulgated in writing nor in any set form, but may consist of established usages and practices, which have become a kind of common law of the department.3


23. Regulations Cannot Prescribe a Criminal Offense

Departmental regulations cannot prescribe an offense subject to criminal pro


24. Construction of Regulations

The courts will. hesitate before requiring the executive heads of departments of the government to abandon their construction of departmental regulations and their administrative action thereunder.39

25. Power of Executive Department to Impose Fines

There is no warrant for an executive department to impose fines, and penalties and forfeitures, except as derived ex contractu.40

26. Departmental Head may Not Employ Counsel

No departmental head may, at government expense, employ counsel, but, when in need thereof, he must request counsel from the Department of Justice.41 27. Opinion of Attorney General

The opinion of the Attorney General may be required by the head of any executive department on any questions of law arising in the administration of his department.42

35 U. S. v. Cadwalader, Fed. Cas. No. 14,706.

36 Garlinger v. U. S., 30 Ct. Cl. 473.

37 Haas v. Henkel, 216 U. S. 462, 30 S. Ct. 249, 54 L. Ed. 569, 17 Ann. Cas. 1112; U S. v. Macdaniel, 7 Pet. 1, 8 L. Ed. 587

38 U S. v. Eaton, 144 U. S. 677, 12 S. Ct. 764, 36 L. Ed. 591.

39 Hitchcock v. U. S., 22 App. D. C. 275.

40 9 Op. Attys. Gen. 32.

41 R. S§ 189 (Comp. St. § 271); 13 Op. Attys Gen. 514; 14 Op Attys. Gen. 13; 18 Op. Attys. Gen. 124, 135; 16 Op. Attys Gen 99; 20 Op. Attys. Gen. 655; 19 Op. Attys. Gen. 328; 21 Op. Attys. Gen. 195.

42 R. S. § 356 (Comp. St. § 530); 5 Op. Attys Gen. 626; 10 Op. Attys. Gen. 164; 14 Op. Attys. Gen. 21; 15 Op. Attys. Gen. 133, 574; 17 Op. Attys. Gen. 357; 18 Op. Attys. Gen. 59, 107, 521; 19 Op. Attys. Gen. 56, 457, 598; 20 Op. Attys. Gen. 51, 249, 251, 487, 500, 584, 609. 613, 648, 655, 658, 739; 21 Op. Attys. Gen. 24, 509, 511, 558; 22 Op. Attys. Gen. 85; 24 Op. Attys. Gen. 59, 69, 85, 118, 553; 25 Op. Attys. Gen. 97, 183, 185, 301, 369, 614; 26 Op. Attys. Gen. 81, 431, 609, 631; 28 Op. Attys. Gen. 226, 534; 29 Op. Attys. Gen. 99.

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28. Departments to Give Attorney General Information re Claims

In all suits brought against the United States in the Court of Claims, founded upon contract, or transactions with any department, bureau, officer, or agent of a department, or where the matter has been decided by any department, bureau, or officer authorized to adjust it, the department, bureau, or officer, upon proper request, must furnish the Attorney General with a full statement in the premises.43

29. Claims Referred to Court of Claims

A claim pending in a department, involving controverted questions of fact or law, may be transmitted by the head of such department to the Court of Claims.44 30. Authority to Administer Oaths

Any officer or clerk of any of the departments lawfully detailed to investigate frauds on, or attempts to defraud, the government, or any irregularity or misconduct of any officer or agent of the United States and any officer of the Army, Navy, Marine Corps, or Coast Guard Service, detailed to conduct an investigation, and the recorder, and, if there be none, the presiding officer, of any military, naval or Coast Guard service board appointed for such purpose, has authority to administer an oath to any witness attending to testify or depose in the course of such investigation.45

31. Subpoenas to Witnesses; Claims Pending in Departments

Any head of a department or bureau in which a claim against the United States is properly pending may apply to any judge or clerk of any court of the United States, in any state, District or territory, to issue a subpoena for a witness, being within the jurisdiction of such court, to appear at a time and place in the subpoena stated, before any officer authorized to take depositions to be used in the courts of the United States, there to give full and true answers to such written interrogatories and cross-interrogatories as may be submitted with the application or to be orally examined and cross-examined upon the subject of such claim.46

32. Officers Forbidden to Aid a Claim Against United States

Officers of the United States are forbidden to aid in any manner in the prosecution of a claim against the United States.47

33. Departmental Contracts Must Have Statutory Authority

Department heads cannot bind the government on contract without statutory authority.48

43 R. S. § 188 (Comp. St. § 270).

44 Judicial Code, § 148 (36 Stat. 1137 [Comp. St. § 1139]).

45 R. S. § 183, as amended by Act Feb. 13, 1911 (36 Stat. 893 [Comp. St. § 265]), and Act Jan. 28, 1915, c. 20. § 1 (Comp. St. § 84592a).

46 R. S. § 184 (Comp. St. § 266); 14 Op. Attys. Gen. 419; In re Gross (C. C.) 78 F. 107; In re McLean (D. C.) 37 F 648; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 155 U. S. 3, 14 S. Ct. 1125, 15 S. Ct. 19, 38 L. Ed. 1047, 39 L. Ed 49.

47 R. S. § 5498, re-enacted 35 Stat. 1107 (Comp. St. § 10278).

48 Lord v. U. S., 43 Ct. Cl. 282, affirmed 217 U S. 340, 30 S. Ct. 568, 54 L. Ed. 790; U. S. v. Doullut, 213 F. 729, 130 C. C. A. 243.

34. Contract; Signing and Reducing to Writing

A contract for public works is regarded as signed by the United States when it recites that it is made by the United States by a specified officer, described as the Chief of the Bureau of Yards and Docks, and signed by such with his official title.49

Failure to reduce the contract made by the Secretary of War to writing, signed by the contracting parties, as required by R. S. § 3744 (Comp. St. § 6895), does not preclude enforcement by the government, though unenforceable against the government.50

35. Chief Clerks to Supervise Subordinate Clerks and Distribute Duties

Each chief clerk in the several departments, and in the other bureaus and offices connected with the departments, is charged with the duty of supervising the duties of the other clerks and of distributing duties equitably. He must report monthly to his superior any existing defect that he discovers in the management or dispatch of business.51

36. Disbursing Clerks

Provision is made for the appointment of a disbursing clerk in each department, to keep and disburse the funds of his department and to superintend the buildings thereof.52 They are required to give bond. The superintendence of buildings is now usually a duty of the chief clerk.

37. Transfer of Employees from Department to Department

Prior to March 4, 1923, no clerk or other employee could be transferred from one department to another until he had served three years in the department from which he sought transfer, which provision included application to transfers from executive departments to independent establishments and vice versa, and between independent establishments, including the United States Shipping Board Emeigency Fleet Corporation,53 but the restriction did not apply to employees in post offices, pension agencies, subtreasuries, customs houses, ordnance establishments, navy yards, and quartermasters' establishments.54 The Act of March 4, 1923, however, provided that transfers might be made "subject to such rules and regulations as the President may from time to time prescribe, * * in accordance with civil service rules, any provision of existing statutes to the contrary notwithstanding." "55 The civil service rule governing transfers is to the effect that

49 U. S. v. McMullen, 222 U. S. 460, 32 S. Ct. 128, 56 L. Ed. 269, reversing 167 F. 460, 93 C. C. A. 96

50 U. S. v. N. Y. & P. R. S. S. Co., 239 U. S. 88, 36 S. Ct. 41, 60 L. Ed. 161; reversing 209 F. 1007, 126 C. C. A. 668; Cf. Johnston v. U. S., 41 Ct. Cl. 76; Little Falls Knitting Mill Co. v. U. S., 44 Ct. Cl. 1; Cathell v. U. S., 46 Ct. Cl 368; Purcell Envelope Co. v. U.

S., 47 Ct. Cl. 1; Gillespie v. U. S., 47 Ct. Cl. 310.

51 R. S. §§ 173, 174 (Comp. St. §§ 255, 256)

52 Act March 3, 1853 (10 Stat. 211); Act March 3, 1855 (10 Stat. 699); McKnight's Case, 13 Ct. Cl. 304.

53 34 Stat. 449 (Comp. St. § 251); Deficiencies Appropriation Act Oct. 6, 1917 (40 Stat 245).

54 26 Op. Attys. Gen. 254; 27 Op. Attys. Gen., 100.

55 Act March 4, 1923, c. 265, § 10 (42 Stat. 1491).

any person proposed for transfer must have received absolute appointment and must have actually served for at least six months next preceding transfer.

38. Voluntary Service Not Acceptable

No department or officer of the United States may accept voluntary service for the government or engage service in excess of that authorized by law, except in case of sudden emergency involving loss of human life or destruction of property.56

39. Attorney Disqualified to Act as Notary

A notary appointed in one of the states is not authorized to certify in his official capacity to an instrument filed by him in one of the departments as attorney for the party to whom he has administered the oath; and when such an instrument is in opposition to an application for registration of a trade-mark, a demurrer thereto on such ground will be sustained, and the opposition dismissed.57 40. Budget Officer

A budget officer for each department and establishment is required to be designated by the head of such department or establishment.58

41. Bureau of the Budget; Information for

Under regulations prescribed by the President, (1) every department and establishment must furnish the Bureau of the Budget such information as the bureau may from time to time require, and (2) the personnel of the Bureau of the Budget, when duly authorized, has access to, and the right to examine, any books, documents, papers, or records of any such department or establishment for the purpose of securing information for the preparation of the budget.59

42. Comptroller General; Information for

All departments and establishments are required to furnish the Comptroller General such information regarding the powers, duties, activities, organization, financial transactions, and methods of business of their respective offices as he may from time to time require, and the Comptroller General is authorized to have access to obtain such information.60

43. Copies of Departmental Records; Evidence

Copies of any books, records, papers, or documents in any of the executive departments authenticated under the seals of such departments, respectively, are admissible in evidence equally with the originals thereof.61 This does not include every paper on file but only such as were made by an officer or agent of the government in the course of his official duty.62

56 Act May 1, 1884 (23 Stat. 17).

57 Hall's Safe Co. v. Herring-Hall-Marvin Safe Co., 31 App. D. C. 498. See Code D. C. § 558 (31 Stat. 1279, c. 854, and 34 Stat. 622).

58 Act June 10, 1921, § 214 (42 Stat. 23 [Comp. St. Ann. Supp. 1923, § 400h]).

59 Act June 10, 1921, § 213 (42 Stat. 23 [Comp. St. Ann. Supp. 1923, § 400%gg]).

60 Act June 10, 1921, § 313 (42 Stat. 26 [Comp. St. Ann. Supp. 1923, § 400%g]). 61 R. S. § 882 (Comp. St. § 1494).

62 Block's Case, 7 Ct. Cl. 406.

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